11-3861

Malcolm v. Holder

BIA

A040 089 328

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 20th 4 day of September, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 PETER W. HALL,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________

12

13 CARL ANTHONY MALCOLM,

14 Petitioner, 

15

16 v. 11-3861

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Barbara Dominique, The Dominique

24 Group, New York, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Linda S. Wernery,

28 Assistant Director; William C.

29 Minick, Trial Attorney, Office of

30 Immigration Litigation, Civil

31 Division, United States Department

32 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Carl Anthony Malcolm, a native and citizen of Jamaica,

6 seeks review of a September 6, 2011, order of the BIA

7 denying his motion to reopen his removal proceedings. In re

8 Carl Anthony Malcolm, No. A040 089 328 (B.I.A. Sep. 6,

9 2011). We assume the parties’ familiarity with the

10 underlying facts and procedural history of the case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006) (per curiam). In this case, the BIA did not

14 abuse its discretion in denying Malcolm’s motion.

15 An alien raising a claim of ineffective assistance of

16 counsel must substantially comply with the procedures for

17 raising such claims set forth in Matter of Lozada, 19 I. &

18 N. Dec. 637 (BIA 1988). See Jian Yun Zheng v. U.S. Dep’t of

19 Justice, 409 F.3d 43, 46 (2d Cir. 2005). The BIA reasonably

20 concluded that Malcolm did not demonstrate that he notified

21 his former attorney of his allegations against her as

22 required by Lozada, because he did not submit any evidence

23 of such notification.
3

1 Additionally, the record supports the BIA’s conclusion

2 that Malcolm failed to demonstrate that he was prejudiced by

3 his former attorney’s alleged ineffective assistance. See

4 Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006). Malcolm

5 argues that his attorney should not have conceded before the

6 Immigration Judge (“IJ”) that he was convicted under

7 subsection (1) of NY PENAL LAW § 120.00. But the BIA

8 reasonably concluded that Malcolm was not prejudiced by his

9 attorney’s concession, because the record of conviction

10 submitted by the government in front of the IJ established

11 that Malcolm’s conviction was under that subsection. 

12 Similarly, the BIA reasonably concluded that Malcolm failed

13 to demonstrate that he was prejudiced by his former

14 attorney’s failure to apply for relief under the Convention

15 Against Torture (“CAT”), as Malcolm’s motion to reopen did

16 not establish that he was eligible for CAT relief, because

17 he did not show that any harm he might face from gang

18 violence in Jamaica would occur with the consent or

19 acquiescence of that country’s authorities. See Khouzam v.

20 Ashcroft, 361 F.3d 161, 168-71 (2d Cir. 2004).

21 For the foregoing reasons, the petition for review is

22 DENIED. Any pending request for oral argument in this
4

1 petition is DENIED in accordance with Federal Rule of

2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

3 34.1(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

7